The Chicago v. the President

• Decision Date: 30 April 1864
• Citation: 1864 WL 2980,34 Ill. 195
• Parties: THE CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANYv.THE PRESIDENT AND TRUSTEES OF KNOX COLLEGE.
• Court: Illinois Supreme Court

34 Ill. 195

1864 WL 2980 (Ill.)

THE CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY

v.THE PRESIDENT AND TRUSTEES OF KNOX COLLEGE.

Supreme Court of Illinois.

April Term, 1864.

APPEAL from Circuit Court of Peoria County.

The case is sufficiently stated in the opinion.

Walker & Dexter, for appellant.

Wead & Cochran, for appellees.

WALKER, C. J.

This was an action of ejectment,¹ instituted by appellees, for the recovery of a strip of land, over which appellant's road is located. It is stipulated that the Peoria and Oquawka Railroad Company took possession of the land in 1854, as right of way, and constructed their road thereon. That they had the damages assessed, growing out of the appropriation of the land for that purpose. That appellees, before the commencement of this suit, brought an action for the recovery of the damages of the Peoria and Oquawka Railroad Company, and obtained a judgment, which has never been satisfied. That appellants were in possession at the commencement of the suit, as lessees of the Peoria and Oquawka road, and were using the same, and running their cars on the road. It appears that at the time this road was being constructed on the land in controversy, the engineer who had charge of the work, had frequent conversations with the president, and a portion of the trustees, who admitted that the company had a right to construct their road on this land. This is evidence of a consent on the part of the board of trustees of the college, that the lessor of appellant might build and operate their road on this land, and appellant has succeeded to their rights under the lease.

This presents the question whether a notice to quit was necessary before this action could be maintained. After such long continued possession by a tenant, under a license to enter and occupy, whether he is to be treated as a tenant from year to year, or at will, he has the right to notice to quit, before an action can be maintained. 4 Kent, 112; Jackson v. Livingston, 1 Johns., 322. In that case it was held, that where a person entered into possession of land, with the permission of the owner, as a mere occupant, without payment of rent, and made improvements, and afterwards sold his improvements to another person, who went into possession, and the owner sold the land, and his grantee brought ejectment, the person purchasing the improvements of the mere occupant must have notice to quit, and this was after eighteen years' possession. He was treated as a tenant from year to year.

In the subsequent case of Jackson v. Laughtread, 2 Johns., 75, the same rule was there announced. It was there held that a mortgagee, before he brings ejectment against the...